Stephentown Will Not Pay For Gravel Mined Illegally

by David Flint
Tony Cormier apparently is out of luck. The Stephentown Town Board back in April passed a resolution to pay him for the screened gravel that was taken from his property in North Stephentown four years ago. The Board told him he would probably receive a check the following month – $15,357.50 for 6,143 yards of gravel. That decision, however, was contingent on an agreement to be drafted by a lawyer and signed by Cormier that would absolve the Town of any legal liability should the NYS Department of Environmental Conservation (DEC) take action against Cormier for illegal mining.
The Town’s regular attorney, Craig Crist of the Dreyer Boyajian firm, balked at this. Crist strongly recommended that the Town Board not pay the voucher. “It has not been established that there was compliance with competitive bidding requirements and that the materials were exempt from Environmental Conservation Law requirements,” he wrote. “Moreover payment of the voucher would be viewed as the Town Board authorizing illegal mining.”
Crist noted that some people seemed to believe that since former Highway Superintendent Neil Gardner was acquitted last fall of the misdemeanor charge of illegal mining, therefore the mining at Cormier’s property was legal. Not so, he said. The criminal case required different and higher standards of proof and there were no findings of fact by the judge. Moreover, the decision pertained only to Gardner, and Crist thought that DEC could still bring a proceeding against the Town for illegal mining.
The Board discussed this at the May meeting and decided to ask for a second legal opinion. David Gruenberg of Troy was selected based on recommendations from the State Comptroller’s Office and the Association of Towns. Gruenberg’s opinion, dated July 16, essentially is in agreement with Crist, and it too recommended strongly against the payment. Gruenberg said that to be fair he had attempted to meet with Cormier but was not successful.
Gruenberg pointed out first of all that the General Municipal Law prohibits a contractor from assigning or transferring a contract to any other person or corporation “without the previous consent in writing of the…Board,” and that if there is such an assignment, the Board is “relieved and discharged from any and all liability and obligations growing out of such contract…and his assignees…shall forfeit and lose all monies theretofore earned under such contract.” Gruenberg said there was no evidence that the Stephentown Board had ever consented to Russ Freeman’s assignment of payment rights to Cormier.
Secondly, Gruenberg wrote, there was no competitive bidding for the gravel. The argument that bidding was not required because Freeman’s price was less than Rensselaer County was paying did not hold water because the County price was for gravel delivered, and, in any case, Cormier was not an approved vendor for supplying products to the County.
Gruenberg also pretty much agreed with the arguments made by DEC at Gardner’s trial that the mining was illegal, dismissing the contention that a household construction exemption obviated the need for a permit. He said there appeared to be a substantial gravel mining operation going well beyond any reasonable claim that it was related to home construction, and the main excavation area was more than 120 feet from the house.
Gruenberg warned that the problems the Town had in the past with DEC regarding the Ralph Thomas gravel pit as well as the more recent criminal action against Gardner “gives the Town, and more particularly the Board members, substantial exposure in this matter.” He continued that he believed that DEC and the Attorney General’s Office “are paying close attention to the actions of the Town Board on these issues. Payment of the voucher could well trigger additional legal action against the Town, if such legal action is not already contemplated.”
Gruenberg concluded that if Cormier still believes he has a legal claim he could sue the Town. He thought it unlikely a court would find in his favor, but if it did the Town and the Town Board would at least have a court determination insulating them from liability for paying the claim.
Town Supervisor Tom Sherman said at the Town Board meeting Monday evening that all the documents are available for anyone to see at the Town Clerk’s office. Attorney/client privilege has been waived. He called for a roll call vote on a resolution denying payment of Cormier’s claim. The vote was 3-1 in favor of the resolution, thus denying payment. Sherman, along with Councilmen PJ Roder and Chris Demick voted yes and Councilman Mark Prescott voted no, saying, “I have to vote my conscience on this one,” Councilman Larry Eckhardt was absent. Tony Cormier was also not present at this meeting.
Bids Awarded for Road Materials
The Board approved the minutes of a special meeting held on July 1 at which they accepted bids for the provision of road work materials including sand and gravel. Four bids were received. All were very close in price, and all four were accepted, with the purchase and source of the product to be at the discretion of the Highway Superintendent. The bids for materials were awarded to Bly Hollow Farm (Doug Goodermote), Bemiss Trucking Service, the Richard Senter Trust (John Senter) and Quality Construction (Billy Hammersmith).
Among claims approved at this meeting was one for winter sand from the Senter Trust for $10,500 and another for 21 loads of screened sand for $2,184, picked up by the Town Highway Department from the Quality Construction gravel mine in Cherry Plain.
Cash Situation Improved
Sherman reported that the cash situation has improved with checks received recently from the County and the State. A sales tax distribution was received in the amount of $58,693 and two payments of State aid were received, one for $20,630 and another for $56,515, for a total of $135,838. These payments together with a reduction in health insurance premiums of about $23,000 puts the Town in much better shape than what Sherman was reporting earlier this year.
Sherman now suggested that the Board consider paying cash for a new $92,000 tractor that the Town has on order from Capital Tractor. The Board had decided last month to put half the money down and finance the rest over three years.  Sherman calculated the Town could save two or three thousand dollars in interest charges by paying cash.
Sexual Harassment Policy
Sherman recalled that a recent audit of Town operations had revealed among other things that the Town had no policy on sexual harassment. While as far as anyone knows there have been no instances of sexual harassment associated with the Town government, in order to be in compliance with State requirements, Sherman took it upon himself to draft a basic policy, borrowing heavily from one in force at Mt. Greylock High School. The policy defines sexual harassment and outlines a procedure for reporting and handling of complaints. Sherman proposed a resolution adopting the policy, and it was passed unanimously by the Board.
Other Business
In other business, the Board:
• Passed a resolution authorizing the Town Court to apply for grants from New York State.
• Authorized the hiring of Terry Sykes to cut down the brush at the Transfer Station at a charge of under $1,000.
• Noted that ERCSWMA is looking for volunteers to staff a Hazardous Waste Day set for September 19 in the town of Nassau. Volunteers can contact PJ Roder or the Town Clerk.
• Noted that the Town Clerk turned over to the Supervisor the sum of $919.56 for the month of June.
• Noted that the distribution from the Office of the State Comptroller, Justice Court Fund to the Town was $1,650 for the month of June.
• Noted that the Transfer Station deposited a total of $5,211 for the month of June.
• Audited and approved claims in the amount of $22,313.10 from the General Account and $27,048.37 from the Highway Account.
• Set their next regular meeting for Monday, August 17 at 7 pm.